Brannock v. McHenry

• Decision Date: 28 June 1913
• Parties: MILTON W. BRANNOCK, Appellant, v. SAMUEL McHENRY and MARTHA E. McHENRY
• Court: Missouri Supreme Court

158 S.W. 385

252 Mo. 1

MILTON W. BRANNOCK, Appellant, v. SAMUEL McHENRY and MARTHA E. McHENRY

Supreme Court of Missouri, Second Division

June 28, 1913

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed and remanded.

Wilson Cramer and R. S. Houck for appellant.

(1) The indorsement of the clerk's certificate of acknowledgement upon a sheriff's deed is an essential part of the deed without which it is void. Ryan v. Carr, 46 Mo. 482; Adams v. Buchanan, 49 Mo. 64; Graton v. Land & Lumber Co., 189 Mo. 320. (2) This certificate of acknowledgement cannot be supplied by the clerk's minutes. Samuels v. Shelton, 48 Mo. 444; McClurg v. McClurg, 53 Mo. 173; Lincoln v. Thompson, 75 Mo. 613. (3) A court of equity will not aid in the execution of a statutory power; the statutory remedy is exclusive. Dixon v. Hunter, 204 Mo. 382; Ware v Johnson, 55 Mo. 503. (4) A purchaser at an execution sale acquires title only upon delivery of a valid deed to the purchaser by the sheriff. Leach v. Koenig, 55 Mo 453; Blodgett v. Perry, 97 Mo. 275; Land & Lumber Co. v. Bippus, 98 S.W. 547. (5) Non-payment of taxes for thirty years, absence of possession by legal owner for a like period and one year of actual possession by claimant next before the institution of suit, are prerequisites to the acquisition of title by claimant under Sec. 1884, R.S. 1909. Collins v. Pease, 146 Mo. 140.

Wammack & Welborn for respondents.

(1) The appellant's action is barred by the ten years Statute of Limitations. Haarstick v. Gabriel, 200 Mo. 244. (2) The appellant and his grantors abandoned their ownership of this land thirty-five years ago and they should not now be heard to assert any claim to it. Shelton v. Horrell, 232 Mo. 374. (3) The respondents are entitled to a corrected sheriff's deed. Porter v. Mariner, 50 Mo. 364; Land & Lumber Co. v. Franks, 156 Mo. 673; Thornton v. Miskimmon, 48 Mo. 219.

WILLIAMS, C. Roy, C., concurs. Faris, J., concurs in result only.

OPINION

WILLIAMS, C.

This is an action under section 650, Revised Statutes 1899 (Sec. 2535, R.S. 1909), to quiet title to the south half of lot 2, the north half of the south half of lot 3, and the south half of lot 4, section 6, township 27, range 12, in Stoddard county, Missouri.

The petition is in the usual form. The defendants, by their answer, claim title in themselves, and ask for affirmative relief; also plead the ten-year and thirty-year Statutes of Limitation, and laches. The answer also contained a count asking for a new sheriff's deed from the present sheriff as follows:

"Further answering, defendants aver that they verily believe that the only defect urged by plaintiff against said sheriff's sale and deed is the fact, as claimed by plaintiff, that the circuit clerk of said Stoddard county failed to indorse upon said deed his certificate of the acknowledgment by the then sheriff of said county in open court of the execution of said deed; defendants state that the said Ebeneezer G. Liles purchased said lands at said sheriff's sale and paid the sheriff the amount of his bid; that R. M. Fraker, the then sheriff of said county, duly acknowledged his execution of said deed in open court, and that the failure of the clerk to indorse his certificate of said acknowledgment of said deed was simply a clerical omission.

"Defendants state that plaintiff and those under whom he claims, when they obtained title to said lands, did so with full knowledge of the rights of defendants and those under whom they claim in and to said lands, under said sheriff's sale and deed.

"Wherefore, defendants say that they are entitled at law and in equity to an initial sheriff's deed to said premises to be duly executed by the present sheriff and clerk of said circuit court of Stoddard county, and they pray the court for a decree ordering said sheriff and clerk to execute the same to them."

Plaintiff's reply was a general denial.

One John E. Liles was admitted to be the common source of title and the owner of this land prior to December 2, 1871. Plaintiff introduced in evidence a deed executed by said Liles and wife to Walter Phelan, dated October 13, 1894, and a complete chain of conveyances from said Phelan to plaintiff. The defendants then offered in evidence a sheriff's deed to said land, dated December 2, 1871, from Robert M. Fraker, sheriff of Stoddard county, to Ebeneezer G. Liles, reciting that said land was sold under executions issued by the clerk of the circuit court of Stoddard county upon personal judgments against the said John E. Liles. Said sheriff's deed was recorded July 12, 1872, in the recorder's office of said county, but the deed did not bear the certificate of the circuit clerk showing that it was acknowledged by the sheriff as required by law. Over plaintiff's objection, defendants introduced in evidence the record of the Stoddard county circuit court, made by the clerk of that court January 10, 1871, reciting that said Robert M. Fraker, sheriff, came into open court and acknowledged the execution of said deed, describing the lands and the parties to the judgments upon which executions were issued. Defendants then offered in evidence mesne conveyances from said Ebeneezer G. Liles to Samuel McHenry, defendant herein.

The evidence tended to prove that defendant McHenry had paid the taxes on this land from 1876 down to the time of the trial, that the lands were wild, unfenced timber lands, and that the only portion thereof that had been cleared or cultivated was half an acre in the south half of said lot two, which said half acre appears to have been enclosed in a neighbor's field, and not to have been in possession of either of the parties to this suit or those under whom they claim.

The total land in controversy approximates eighty acres, and comprises three separate, non-adjoining tracts. Defendant did not live in Stoddard county, and does not claim to have had actual possession of the land at any time, but the testimony shows that he owned other lands in that county, lying near but not adjoining this land, upon which he had a tenant, and that he authorized this tenant to go upon the land in controversy and cut such timber therefrom as he might need. There was some testimony that defendant had an agent residing in the county at one time, and that this agent authorized some parties to cut some timber off a portion of this land. How much timber was cut is not shown. Two witnesses testified for defendant that it had been known in that vicinity for the last eighteen years that the land in controversy was defendant's land. The evidence further shows that at the time plaintiff purchased this land, which was on January 28, 1908, he was told that defendant claimed the same by virtue of the above-mentioned sheriff's deed, and that he was apprized of the fact that he would likely have to bring suit to quiet the title.

Plaintiff's testimony in rebuttal tended to prove that he did not have knowledge of the defective sheriff's deed at the time he purchased. Plaintiff's evidence further tended to prove that about thirteen years prior to the institution of this suit, one of his predecessors in title, R. M. Abner, built a house on said lot number two, and lived there a few years, claiming to own all of lots two and three, and another lot not in suit here, being lot number one, all of which lots were contiguous and were embraced in the deed that undertook to convey same to said Abner.

Defendant introduced in evidence the depositions of John E. Liles, in which Liles testified that he was now eight-two years old; that at one time he owned over thirteen thousand acres of swamp and timber land, including the land in controversy, in Stoddard county, and that he paid taxes on the same up until 1876, but paid very little attention to the land in controversy after that time; that he quit paying taxes because he thought the taxes amounted to more than the land was worth. When asked if he abandoned the land, he answered that all that he "ever did in the way of abandonment of the land was just letting the taxes go delinquent;" that after he quit paying the taxes he paid no more attention to the land until Walter Phelan urged him to deed the land to him. He then says, "I quitclaimed all the land I had to Walter Phelan, and he was to work it up and give me half, but my half never came to anything; he never gave me anything."

No declarations of law were requested or given. The court, sitting as a jury, found for defendants, and entered the following judgment:

"Now on this 3rd day of April, 1909, this cause coming on to be heard, and both parties appearing in person and by attorneys it is submitted to the court for trial. And the court, having seen and heard all the evidence adduced by both the plaintiff and defendants, and being fully advised in the premises, doth find as follows:

"(1) That defendants claim no title to the following described lands, to-wit: The south half of the south half of lot three, in section six, township twenty-seven, range twelve east, in Stoddard county, Missouri, and that the title thereto is, as between plaintiff and defendants, in the plaintiff.

"(2) That the equitable title to the following described lands to-wit: The south half of lot 2, the north half of the south half of lot 3, and the south half of lot 4, all in section six, township twenty-seven, range twelve east, in Stoddard county, Missouri, emanated from the government more than ten years before the bringing of this suit, and that neither the plaintiff nor any one under whom he claims has been in possession of or paid any taxes on said real estate, or any part thereof, for more than thirty-one years prior to the bringing of this suit, and that the defendants have been in the lawful possession...